Can the UN CESCR guide States’ responses to COVID-19?

In the midst of the COVID-19 outbreak, the United Nations Committee on Economic, Social and Cultural Rights’ new General Comment No. 25 sheds light on States’ use of science and technology in their pandemic responses, and highlights the importance of research and scientific work as the pandemic evolves and the need for treatment protocols, ventilators, novel medical respiratory devices and a vaccine becomes more urgent.

On April 7, 2020, the United Nations Committee on Economic, Social and Cultural Rights (hereinafter: CESCR) issued its latest General Comment No. 25 (hereinafter: GC25), which addresses the link between science and technology and the enjoyment of economic, social and cultural rights. Among all of the thematic contents developed by the CESCR in this General Comment, the right to participate and to enjoy the benefits of scientific progress and its applications (hereinafter: REBSPA) is especially relevant to the global response to COVID-19, from symptoms and treatments to an eventual vaccine.

The CESCR starts by establishing that the REBSPA is composed of the right to participate in scientific progress and to enjoy the freedom indispensable for scientific research, together with the right to enjoy, without discrimination, the benefits of scientific progress. This means that, in their response to COVID-19, States should make sure that scientific progress takes place by promoting open science and open source publication of research, as well as guaranteeing equal access to the applications of science -the particular implementation of science to the specific concerns and needs of the population-; equal participation in scientific progress; access to updated and verifiable public scientific information; and disseminating this information in terms that are understandable to the public. This has a number of implications for COVID-19 responses, from ensuring accurate information about public health measures like social distancing and stay-at home orders, to equal and non-discriminatory access to tests, ventilators and an eventual vaccine.

Furthermore, the GC25 determines a set of 12 core obligations related to REBSPA that States must implement and prioritize to ensure the enjoyment of ESCR as established by the International Covenant on Economic, Social and Cultural Rights. Some of the most relevant obligations for framing responses to the COVID-19 pandemic are: (i) ensuring access to applications of scientific progress critical to the enjoyment of health and other ESCRs; (ii) guaranteeing the prioritization of public resources for research that is directed to scientific progress in health, food and other basic needs; (iii) ensuring adequate training for health professionals; (iv) promoting accurate scientific information and refraining from misinforming the public; (v) adopting mechanisms to protect people from the consequences of false, misleading and pseudoscience based practices; and (vi) fostering the development of international contacts and cooperation in the scientific field.

In addition, the CESCR explains that the REBSPA is intrinsically related to the right to health, as scientific progress includes medical progress in disease prevention and effective treatment. The REBSPA also mediates between the right to health and intellectual property rights, to ensure that the latter does not impose obstacles on the realization of the former. This requires States to foster mechanisms for COVID-19 response through which scientific progress can be made rapidly available to the health system and which prioritize the effective enjoyment of the right to health in COVID-19 vaccine development, approval, and distribution.

Finally, the CESCR closes by addressing the need for international cooperation by stating that States should “promote a global environment favorable for the advancement of science and the enjoyment of benefits from its applications”. According to the CESCR, this is especially relevant when considering the existing global disparities in science and technology among countries, which result from financial or technological limitations in developing countries. As such, developed countries should promote capacity-building activities and information-sharing practices that ensure access to scientific resources and information in developing countries, and that contribute to health risk prevention and mitigation, including the risk of pandemics such as COVID-19.

The COVID-19 pandemic is challenging States around the world. As they build responses, the GC25 can provide them with important guidance on States’ obligations concerning the use of science and technology and the REBSPA. In the weeks to come we will witness if States’ responses stood up to these standards.

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.